Dismissed

anil kumar gupta and another v. sri subhash chandra agarwal and another

Allahabad HC12 Feb 2018FAPLD/33/2018

Case brief

AI extract

What is this about?

This appeal was dismissed as barred by limitation. The court rejected the application for condonation of delay under Section 5 of the Limitation Act, 1963, ruling that the explanation for the one-year and 200-day delay was insufficient and lacked bona fides.

What did the court decide?

The application for condonation of delay was rejected and the subsequent appeal was dismissed as barred by limitation.

anil kumar gupta and another Vs sri subhash… — Civil Procedure and Limitation | Allahabad HC (2018)

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Court No. - 34

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Case :- FIRST APPEAL DEFECTIVE No. - 33 of 2018

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Appellant :- Anil Kumar Gupta and another Respondent :- Sri Subhash Chandra Agarwal and another Counsel for Appellant :- Raj Kumar Kesari

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Order on Delay Condonation Application:

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Hon'ble Sudhir Agarwal,J. Hon'ble Neeraj Tiwari,J.

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This is an application filed under Section 5 of Limitation Act, 1963 (hereinafter referred to as “Act, 1963”) seeking condonation of delay in filing appeal. The appeal filed under Section 96 of Code of Civil Procedure is directed against judgment and order dated 18.04.2016 and 28.04.2016 passed by Sri Gulam Mustafa, Civil Judge (Senior Division)-II, Hapur dismissing Original Suit No. 406 of 2013 and has been preferred after expiry of period of limitation with delay of one year and 200 days. In the explanation furnished in the affidavit accompanying application filed under Section 5 of Act, 1963, it is said that defendants being aggrieved by finding recorded by Court below in respect to Issue-3 filed an appeal under Section 96 C.P.C. being First Appeal No. 275 of 2016 before this Court which was dismissed on 21.07.2016 whereafter defendants-respondents preferred Civil Revision (Defective) No. 169 of 2016 which was also dismissed as misconceived by order dated 12.08.2016. Thereafter defendantsrespondents filed Special Leave Petition No. 5377-78 of 2017 which is pending before Apex Court.

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The factum that defendants-respondents filed First Appeal or Revision does not give any justification to plaintiff-appellant file appeal after expiry of period of limitation when appellants' suit itself was dismissed. No reason has been given in the entire affidavit as to why appellants could not file appeal within period of limitation or even when defendants-respondents filed appeal on 01.05.2016 which was dismissed, or within a reasonable period thereafter.

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Having heard learned counsel for applicants-appellants and going through the affidavit, in our view, there is no explanation what to say of satisfactory explanation as to why the matter was not taken with due earnest and reasonable expediency.

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The expression "sufficient cause" in Section 5 of Act, 1963 has been held to receive a liberal construction so as to advance substantial justice and generally a delay in preferring appeal, revision etc. may be condoned in interest of justice where no gross negligence or deliberate inaction or lack of bona fide is imputable to parties, seeking condonation of delay. In Collector, Land Acquisition Vs. Katiji, 1987(2) SCC 107 , the Court said, that, when substantial justice and technical considerations are taken against each other, cause of substantial justice deserves to be preferred, for, the other side cannot claim to have vested right in injustice being done because of a non deliberate delay. The Court further said that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

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In P.K. Ramachandran Vs. State of Kerala, AIR 1998 SC 2276 the Court said:

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"Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds."

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The Rules of limitation are not meant to destroy rights of parties. They virtually take away the remedy. They are meant with the objective that parties should not resort to dilatory tactics and sleep over their rights. They must seek remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The statute relating to limitation determines a life span for such legal remedy for redress of the legal injury, one has suffered. Time is precious and the wasted time would never revisit. During

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efflux of time, newer causes would come up, necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The statute providing limitation is founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). It is for this reason that when an action becomes barred by time, the Court should be slow to ignore delay for the reason that once limitation expires, other party matures his rights on the subject with attainment of finality. Though it cannot be doubted that refusal to condone delay would result in foreclosing the suiter from putting forth his cause but simultaneously the party on the other hand is also entitled to sit and feel carefree after a particular length of time, getting relieved from persistent and continued litigation.

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There is no presumption that delay in approaching the court is always deliberate. No person gains from deliberate delaying a matter by not resorting to take appropriate legal remedy within time but then the words "sufficient cause" show that delay, if any, occurred, should not be deliberate, negligent and due to casual approach of concerned litigant, but, it should be bona fide, and, for the reasons beyond his control, and, in any case should not lack bona fide. If the explanation does not smack of lack of bona fide, the Court should show due consideration to the suiter, but, when there is apparent casual approach on the part of suiter, the approach of Court is also bound to change. Lapse on the part of litigant in approaching Court within time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, would add to his negligence, and would be relevant factor going against him.

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We need not to burden this judgment with a catena of decisions

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explaining and laying down as to what should be the approach of Court on construing "sufficient cause" under Section 5 of Act, 1963 and it would be suffice to refer a very few of them besides those already referred.

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In Shakuntala Devi Jain Vs. Kuntal Kumari, AIR 1969 SC 575 a three Judge Bench of the Court said, that, unless want of bona fide of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.

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The Privy Council in Brij Indar Singh Vs. Kanshi Ram ILR (1918) 45 Cal 94 observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. This principle still holds good, inasmuch as, the aforesaid decision of Privy Council has repeatedly been referred to, and, recently in State of Nagaland Vs. Lipok AO and others, AIR 2005 SC 2191 .

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In Vedabai @ Vaijayanatabai Baburao Vs. Shantaram Baburao Patil and others, JT 2001(5) SC 608 the Court said that under Section 5 of Act, 1963 it should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. In the former case consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard and the basic guiding factor is advancement of substantial justice.

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In Pundlik Jalam Patil (dead) by LRS. Vs. Executive Engineer, Jalgaon Medium Project and Anr. (2008) 17 SCC 448, in para 17 of the judgment, the Court said :

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“...The evidence on record suggests neglect of its own right for long time in preferring appeals. The court cannot enquire into

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belated and state claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and do not slumber over their rights.”

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In Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai, 2012 (5) SCC 157, in para 18 of the judgment, the Court said as under:

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“What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. What colour the expression 'sufficient cause' would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.”

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In Brijesh Kumar and others Vs. State of Haryana and othrers (2014) 11 SCC 351 , Court said as under:

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"The courts should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. However the court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963. Sufficient cause is a condition precedent for exercise of

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discretion by the Court for condoning the delay. This Court has time and again held that when mandatory provision is not complied with and that delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic grounds alone. "

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(emphasis added) 17. Recently, Apex Court in K. Subbarayudu and others Vs. The Special Deputy Collector (Land Acquisition) 2017 (8) SCALE 61 referring to State of Nagaland Vs. Lipok AO and others (supra) has reiterated the view taken therein that Court has to go into the position of the person concerned and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause recorded in the peculiar circumstances of the case is sufficient.

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In our view, the kind of explanation rendered in the case in hand does not satisfy the observations of Apex Court that if delay has occurred for reasons which does not smack of mala fide, the Court should be reluctant to refuse condonation. On the contrary, we find that here is a case which shows a complete careless and reckless long delay which has remained virtually unexplained at all. Therefore, we do not find any reason to exercise our judicial discretion exercising judiciously so as to justify condonation of delay in the present case.

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In the result, the application deserve to be rejected.

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we order accordingly.

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Order Date :- 12.2.2018 PS

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Court No. - 34

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Case :- FIRST APPEAL DEFECTIVE No. - 33 of 2018

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Appellant :- Anil Kumar Gupta and another Respondent :- Sri Subhash Chandra Agarwal and another Counsel for Appellant :- Raj Kumar Kesari

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Hon'ble Sudhir Agarwal,J. Hon'ble Neeraj Tiwari,J.

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The application, seeking condonation of delay in filing appeal, having been rejected vide order of date, this appeal, being barred by limitation, is dismissed.

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Order Date :- 12.2.2018 PS

anil kumar gupta and another v. sri subhash chandra agarwal and another

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anil kumar gupta and another v. sri subhash chandra agarwal and another

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